March 31, 2005

Teaching Rape, the Law anyway

Over at the Volokh Conspiracy, Professor Volokh asks readers to offer suggestions about teaching the law of rape in a first year Crim Law class. He echoes the same concerns that my crim law professor expressed, i.e. because the topic can be difficult to teach and because of sensitivities to those in class who may have personal knowledge and/or experiences some professor just don't teach the topic at all.

Rightly Volokh moves past this and asks for advice for what has worked with others. I initially wanted to post this as a comment at VC, but decided to expand it a bit and turn into a post about using small groups during the first year as a whole. Before I describe how Prof. Crim Law approached the topic in our class, I want to add the caveat that I really do not have any frame of reference. I don't know what a crim law class is like without any discussion of rape, and I don't know what it is like if the topic is offered as a lecture/Socratic method discussion. Regardless, the week spent on the law of rape was very unique and quite frankly it's one of the few areas of crim law that I still remember.

To begin with, Prof. Crim Law assigned everyone in the class to a group of 6, which was in turn part of a larger group of 18. This got a bit technical with the larger group identified with a letter and the smaller group identified with a number, but that really depends on how the professor chooses to break up and assign groups. The important thing is that each small group then chose a topic which had a corresponding article or book, e.g. my group topic was the law of marital rape, or the lack thereof. The other two groups within our larger group had to choose something else for obvious reasons.

We then met during three days in our large groups. (More technicality...we met each day for 75 minutes instead of our normal 4-day 50 minute lectures. So for that week, the ABA class time requirement was not altered). Each of the days had its own preassigned topic of discussion and set of readings. The second day, if I remember correctly, was on "no means no" laws. But, the first 15 minutes of each day were spent on a presentation by one of the groups on the topic they had selected. So during those three days we were exposed to about 6 different topics within the law of rape.

The discussions were moderated by upper-classmen hired by Prof. Crim Law to serve as TAs. They had points that the prof wanted them to cover but the discussion generally flowed based on our comments. All in all, I think the discussions brought a lot of the tough issues surrounding the law of rape as a whole and I learned quite a bit from the comments offered by my classmates. Prof. Crim law also took on day to bring in a guest speaker from the San Mateo DA's office who specialized in sex-crimes. And I think we had one day of just reviewing and tieing up loose ends.

The experience was in a sense a more formal version of a study-group. This semester, Prof. Civ Pro took a similar approach with discovery--similar in the sense that we worked in groups to answer questions about a hypothetical lawsuit based on the Fed. R. Civ. P. At the very least this shows room in the first year curriculum for more small group interaction outside the large lecture [now with wireless access]. But I'm not really prepared to offer any suggestions about how this might come into play in other courses.

Ripeness and Wireless

I didn't get in on the debate during the first round, but now that the topic of wireless access in law school classrooms has come up again, it's time to offer my black robed wisdom. (I really am wearing a black robe at the moment, to check for any problems before handing it on to the Law Revue costume goddess.)

For the most part, I likely would be better off without wireless access. For every time that I have a good AIM conversation about the day's reading, or Shephardize a case under discussion, there are ten classes in which I'm not paying as much attention as I should, considering that I've bothered to get out of bed to attend them in the first place. But in college, I probably would have been better off without so much free time and with more supervision to ensure that I was studying and going to class. Here at law school, I'd be better off with more structure to ensure that I'm learning as I go along instead of cramming at the end of the semester.

Part of the maturity process is learning how to deal with the temptation to waste time and be unproductive. As attorneys, most of us will be sitting in front of an connected computer all the time. Certainly I often was tempted (and succumbed to temptation) to waste time by surfing the internet when I was employed before law school; in fact, my blog started when I didn't have enough work to do and need an outlet for my mental energy. But if one doesn't learn how to ignore the temptations of time-wasting, or at least how to waste time while still getting all of one's work done, then eventually a boss will knock on the door and move one away from that free internet access.

March 28, 2005

To Journal or Not to Journal (End of 1L Year)

Listening to 2Ls grump about working on law review, while listening to my 1L classmates stress about getting onto law review, makes me think there's an information gap between those who think law review is nirvana and those who think it is... not.

I'd like to run a symposium on law review (and perhaps just law journals generally) before journal competition starts. At Columbia, competition is right after finals, so I'd want to have the symposium out before the end of April, in the hopes that 1Ls will read it and be able to make more educated choices. In the interest of getting the most honest reactions, I plan to make the posts presumptively anonymous; if someone wants her name or school or whatever on it, OK, but otherwise it'll just be "A 2L on the journal of gender and law" or even more scrubbed of identifying detail.

For those having writer's block on how to start talking about this topic, I'd suggest addressing such as Law Review vs. specialty journal, or Richard Posner's critique, or whether one can get tenure as a law professor without having been on law review. I'd appreciate if De Novo readers would forward this call for submissions to their friends, professors, students, or anyone who might have two cents to add to the discussion. Please e-mail submit-at-blogdenovo-d0t-org. Thanks!

March 25, 2005

Upside Down

In a three-hour hearing before Judge Whittemore on Thursday night, the parents' lawyer, David Gibbs, argued that every person was entitled to life under the 14th Amendment and that "life can't be denied."

+

"The judges are running this country," Ms. Schiavo's father said outside the hospice Thursday afternoon. "All the judges have banded together to support Judge Greer."

+

Late Wednesday and early Thursday, the Supreme Court received briefs from the Republican leadership of Congress in support of the Schindlers' request. The briefs argued that two lower courts [...] had misunderstood the intent of Congress in the legislation it passed and President Bush signed Monday giving federal courts jurisdiction.

=

LEGISLATION THAT PROHIBITS REMOVING FEEDING TUBES.

This is a serious question. If the courts are so wholly incompetent at understanding that Congress and the Florida legislature want people to be kept alive regardless of their expressed preferences (and so far no court finding has rebutted Mr. Schiavo's assertion that continued life support would contradict his wife's expressed preferences), why aren't we getting state or federal laws on the matter?

Instead, the best the legislative branch can do is pass anemic little statutes that will apply only to this particular case, an action that immediately arouses the judiciary's hostility, because particular cases are under their purview. But if the federal and state legislatures agree with attorney Gibbs that the 14th Amendment prohibits ending a person's life by removing life support, and the courts keep getting the Constitution wrong, why not put the correct understanding into law to apply to everyone and not just Ms. Schiavo?

There may be nothing to offend federalism in Congress's passing a law to give a district court power of review over a specific case, but surely federalists ought to prefer that matters like these be settled by legislatures, preferably at the state level. Federalist Charles Fried quoted Justice Scalia's saying as much:

"The states have begun to grapple with these problems through legislation. I am concerned, from the tenor of today's opinions, that we are poised to confuse that enterprise as successfully as we have confused the enterprise of legislating concerning abortion - requiring it to be conducted against a background of federal constitutional imperatives that are unknown because they are being newly crafted from term to term. That would be a great misfortune."
Justice Scalia went on to say that he would have preferred that the court had announced, "clearly and promptly, that the federal courts have no business in this field." The problem, he insisted, was that "the point at which life becomes 'worthless,' and the point at which the means necessary to preserve it become 'extraordinary' or 'inappropriate,' are neither set forth in the Constitution nor known to the nine justices of this court any better than they are known to nine people picked at random from the Kansas City telephone directory."

If the consensus about the need to maintain life is so strong among Americans, we ought to have laws that declare it. Instead, we have yet another instance of conservatives whinging about how "the judiciary is out of control."

(The title of this post describes the state of the world when a supporter of a constitutional right to abortion is making the argument contained herein.)

March 24, 2005

Today / 3.24.05

Today in Colonizing History (1765) - Great Britain passes the Quartering Act, requiring the American colonists to house British troops in peacetime. Two hundred seven years later, the UK imposes "Direct Rule" over Northern Ireland.

March 22, 2005

Learn to Stop Worrying and Love Shelley v. Kraemer

Justice Scalia's majority opinion in Bray v. Alexandria Women's Health Clinic withers Souter's dissenting citation of Shelley v. Kraemer by saying, "Any argument driven to reliance upon an extension of that volatile case is obviously in serious trouble." Shelley's reasoning that a racially discriminatory private agreement does not violate the 14th Amendment , but a state's enforcement of it would, has fallen into disuse if not disrepute, particularly once federal fair housing legislation rendered it unnecessary.

is not a party to the case except insofar as the Schindlers are challenging the state courts' disposition of the case. Unlike the state's role in a criminal prosecution, Florida would love to have the dispute just go away through a sudden convergence of parental and spousal preference

-- it occurred to me that if the Schindlers could dig up some invidious reason why Mr. Schiavo wants his wife to die, such as gender or disability, they could claim that Shelley prohibits state action to enforce Mr. Schiavo's preference, even if there is no Constitutional prohibition on wanting your wife to be taken off life support because she is female or unable to speak. (Though I couldn't get my professor to clarify whether today's discussion applied to the ADA or ADEA.)

March 21, 2005

Bush v. Gore v. Schiavo

Now that the President has signed the emergency legislation sent to him by Congress authorizing Federal Courts to look into the matter of Terri Schiavo's right to die, I'm wondering if any U.S. District Court can properly consider the matter without violating the Due Process Clause...especially in light of Bush v. Gore. I'm inclined to quote Chief Justice Marshall on this one.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on.

March 20, 2005

Speed Boat to China

Since I visited Hong Kong during Christmas 2002, I've been interested in the gradual process of shifting it to Beijing's control for two main reasons. The lesser one is the ways in which this process underscores the lack of leftwing economic ideology in Chinese Communism; for example, while Hong Kong tries to retain its ability to legislate for worker safety and minimum wages, China pushes for a laissez-faire system.

More fascinating, though, is the Hong Kong people's losing battle to maintain their freedoms and form of government. The U.S. vaguely hopes that trade and other forms of interaction will liberalize China, but in the meantime, the one democratic bit of the country is becoming less and less so. Still, for those interested in comparative international law, China and Hong Kong provide an excellent juxtaposition. The latest incident: Beijing decided that Hong Kong's chief executive's term will be two years, contrary to HK's constitution-like Basic Law, which sets it at five years.

This shift will enable Beijing to exercise more control, sooner, over the province. As with the mainland's other moves to make HK more politically similar to the rest of China, I doubt that protests of unconstitutionality will do much more than slightly slow down implementation. The New York Times article tries to frame this as a potentially larger issue of changing all HK law to be more like China's, but unperturbed HK businesspeople probably have the right of it:

Hong Kong's business leaders, unlike many lawyers, so far seem relatively unfazed by the matter. John C. C. Chan, the managing director of the Kowloon Motor Bus Company Ltd., one of the biggest transportation companies here, said that he viewed the squabble as a matter for politicians, not a threat to the legal system as it applied to business dealings. "There is no risk of the law not applying to contracts," he said.

Considering how well HK business law has done for the area's economy, and the frequency with which even mainland companies write contracts to put themselves under HK jurisdiction, there's little purpose to pushing Hong Kong into a weaker legal system.

The one cause for alarm may be "the assertion by the government here that the common law system should not apply to the Basic Law, which was drafted by Chinese lawyers 15 years ago." Unlike the precedent-based HK jurisprudence, the mainland legal system appears to have what we might call an originalist philosophy; it "provides broad latitude for judges and scholars to look at the intent of the men and women who drafted the law."

However, even this seems to be mostly a weak attempt at providing legal justification for Beijing's power grab, though it does provide a fun instance of The Trouble With Legislative History: "Two mainland legal scholars have stepped forward to say that they recall discussing shortened terms in the late 1980s, even though the discussion is not explicitly reflected in the Basic Law." Uh huh. I can just imagine this happening with the Restatements...

Judge: "But our precedents clearly say that this contract is not valid, nor does statutory law protect it."

Farnsworth: "Oh yeah, but we legal scholars talked about a provision to enforce that kind of contract. The discussion just isn't explicitly reflected in the law. If you read my book, though..."

Perhaps constitutional and business law cannot be so neatly divided, and HK's corporate honchos likely will raise a belated complaint if Beijing tries to micromanage the rules governing their transactions. Until then, however, the general theme of Chinese politics -- political freedom? We rapidly-modernizing-millions don't need no steenkin' political freedom -- probably will extend to Hong Kong as well.

March 19, 2005

That Darn Court!

When did Michael Schiavo stop being the bad guy?

My dad has CNN on whenever he's home and awake, so I was lucky enough to see House Majority Leader Tom DeLay (Bugman-Sugarland) talking about how Congress would have to step in to prevent a court from killing Terri Schiavo. Wait a minute. I thought it was Ms. Schiavo's husband, not a judge, who had fought to get her nutrition and hydration tubes removed. Why was DeLay claiming that the legislature was having to act to stop a judiciary run amok?

Then the inevitable unscientific poll went up: Who should make the decision about ending life support? Seven percent said the courts, two percent said Congress, twenty percent said her parents and sixty-something percent said her husband.

Now I get it; activist judges are a much easier political target than spouses.

(And if anyone's curious about the termination-of-support cases I was following, both families represented by the same attorney: the man on life support has until Wednesday to be accepted by another facility, while baby Sun died Tuesday moments after the removal of his breathing tube.)

UPDATE: Perhaps the poll-taking public just wanted to avoid headlines like the one currently on msn.com: "GOP wins Schiavo deal." If Ms. Schiavo's fate wasn't a political football before, it certainly is now that we're thinking in terms of which side is "winning."

March 18, 2005

Cast From Eden (i.e., court)

While Ben Glatstein is recognizing great analogies in legal reasoning, might I submit the following as entitled to top ten recognition? It's from Seiber v. Pettitt, 49 A. 763 (Pa. 1901), a lawsuit for "criminal conversation," which is the sexual "debauching" of another man's wife. This is just amazing:

If ever the manifest weight of the testimony established a fact, it established here long-continued adulterous intercourse. But the evidence pointed with more or less significance to the fact that the wife was as active in luring him from the path of virtue as he was in enticing her into his embraces . . . . The man who breaks up the home of his neighbor by debauching his wife, rendering his children worse than motherless, is not excused because he is weak, and, being tempted by the woman, falls . . . . It is but the old cowardly excuse set up by the first man, 'The woman gave me of the tree, and I did eat.' It did not save from the penalty the first defendant, and cannot, under the law, save this one.

One can only hope to some day be judged by a voice so deific, in the shadow of mankind's oldest precedent, the Lord's first injunction.

March 17, 2005

Jury Duty

I have just completed my first jury service, where we returned a special verdict for the defense in Rahmanian v. Stanley Steemer, a personal injury lawsuit in California Superior Court.

The experience was superbly enlightening. Law students should eagerly jump at the chance. There's lots to say, but I'll just offer two quick thoughts.

First, I'll suggest an easier pill to swallow than full scale tort reform: all high school ciricula ought to include a unit on how to properly reason as a juror. Understandably, many of my fellow jurors were new to the process of analyzing legal elements independently of one another--many lumped together all sorts of facts to support a generalized conclusion of fairness, not a conclusion whether one particular legal element had been satisfied. Another problem--one that I imagine commonly afflicts juries--was the jury's comfort level reasoning within the burden of proof standard. Some assumed that defense had an equal burden to disprove certain allegations, others simply decided factual questions according to their ordinary judgment without weighing likelihoods. Intimate familiarity with elements of a cause of action and with the meaning of differing burdens of proof early in education might set juries more firmly on track.

Second, I'd be interested to see states experiment by making all civil verdicts presumptively special verdicts (requiring jurors to answer yes or no to particular questions about the facts or "quasi-facts" like reasonableness), where general verdicts would be allowed by party stipulation. I have very little confidence that juries will rigorously and correctly interpret the legal instructions they are given when they are only asked to determine a winner. Instructions for our two-day trial about one isolated, simple incident and one negligence cause of action were many pages long and contained extended guidance on evidentiary matters and a fairly complicated outline of negligence and its relevant defenses. I don't recall any other jurors besides me referencing these instructions, and generally speaking the other jurors didn't seem that concerned with the precise nature of the law bearing on our case.

In the end, I believe we reached the correct result given the evidence presented to us, and I was pleasantly surprised to find that all my fellow jurors were open-minded, reasonable, and dedicated to doing the job well.

March 16, 2005

He's Got the Whole World in His Federalism

Perhaps predictably, posting on the Columbia Federalist Society's blog often turns my thoughts into that way of thinking, albeit in shapes that "real" Federalists probably wouldn't want to touch with a ten foot pole. Today I was looking at theirposts on Roper, particularly the echoes of Justice Scalia's disgust at the citation of other countries' practices, and wondering whether there was any federalist justification for taking foreigners into account.

This doesn't quite pass the laugh test, but: I understand that one reason to permit states to go their own way in all matters not specifically reserved to the federal government is that it permits us to see what works and what doesn't. Treating states as "laboratories of reform" means that the feds can look for the best practices and get an idea of what unforeseen consequences might arise. Certainly this kind of thinking played a major role in welfare reform, as states such as Wisconsin that already had begun changing their programs became models for other states, and the government changed to a block grant system to ensure latitude for further experimentation.

Of course, looking at Roper this way doesn't work because federalism only includes 50 states, not hundreds of nations, and the laboratories justification applies mainly to legislation and policy, not judicial decisions on what is Constitutional. Still, if you're discussing Roper with a conservative -- Justice Scalia, perhaps -- and he's not already foaming at the mouth, it might help to say, "You know, Kennedy could have claimed to be drawing on a laboratories-of-experimentation argument under a one-world government..."

March 15, 2005

Today / 3.15.05

Equality Yes, Liberty and Privacy No

Chris links and summarizes the slip opinion from the San Francisco judge who ruled California's prohibition on same-sex marriage to be unconstitutional. I haven't read it yet, but it sounds like the judge wisely stuck to asserting that gender/sex-based classification was unequal (which it is), and stayed away from the plaintiffs' claims about liberty or privacy rights.

The trouble with such claims is that they have little legal footing, in the case of liberty, or a kind of anti-legal footing, with privacy. How can one have a privacy right to demand a public acknowledgment and governmental recognition of one's union? Marriage, as a legal institution, is inherently non-private from the moment the clerk registers the matter. Liberty is scarcely more fertile ground. Again, it may be an excellent reason why the government ought to butt out of one's sex life, but it's pretty dubious in explaining why the government must butt into one's relationship to recognize it legally and load it up with the rights and responsibilities of marriage.

I worry that the plaintiffs' lawyers have gotten sex and marriage muddled, so that the justifications appropriate to ending the legal prohibition on sodomy are now shoved into the briefs for same-sex marriage. Privacy and liberty are negative rights; they demand that the state leave one alone to pursue one's happiness. Equality, on the other hand, tends to be a quasi-positive right. I have no right to vote if the state doesn't choose to hold an election, but once it does, I have an equal right to vote. I have no right to public education if the state does not provide schools, but once a schooldoor opens I have an equal right to enter. And I have no right to legal recognition of my relationship if the state provides no such recognition to any relationship, but once that recognition is provided, I have an equal right to it regardless of my sex or that of the person I marry.

What Scalia Might Have Meant

Linking a Washington Post profile of Justice Scalia*, IrishLaw says, "I must note that he chastises conservatives on use of the phrase 'judicial activism': it's 'overused.' As for yesterday, I guess I'm guilty :) But I don't think I do it all the time! And besides, 'overused' doesn't mean it's not true :)."

"Overused" might mean that a word is used so often as to lose its meaning, or perhaps that it doesn't have enough significant meaning to begin with. After all, what does "judicial activism" mean? In its broadest sense, it could mean any time the judiciary exercises power to quash the legislature and executive, so Scalia's votes with the majority in Dale v. BSA (squelching New Jersey's anti-discrimination law's application to organizations claiming a First Amendment right to exclude homosexuals) or Solid Waste Agency v. Army Corps of Engineers (denying an arm of the executive jurisdiction over bodies of water insufficiently involved in interstate commerce) -- just to take the two cases I studied in undergrad con law -- were forms of judicial activism.

Of course, fans of Scalia's jurisprudence could argue that "judicial activism" is any departure from the plain meaning of the Constitution, so that when Scalia overturns the Violence Against Women Act or Gun-Free School Zones Act, he is not being an activist, merely an adherent to a narrow definiton of interstate commerce. But then "judicial activist" just collapses into meaning "anyone who interprets the Constitution differently than I do."

* If the televised debate with Breyer really was a PR move, I wish it had been advertised with "Come see the softer side of Scalia."

March 14, 2005

Child of the '80s

I want to point to a new blog, Objective Justice, that deals with law student/law/astrology matters. As part of my first post, I posed these questions about taking time off from school vs. going to law school straight through. Specifically I ask:

Is there any significant advantage to taking time off? Is there any advantage (with respect to study habits) to not taking time off? Do they balance each other out? Is this something that must necessarily be unique to the individual or are there some generalizations we can draw?

Just to kick it up a notch, I want to make this a child of the 80s vs. Studio 54 Kids debate.

March 10, 2005

Today / March 10

Today in History: (1880) - Members of the Salvation Army land in the United States and begin operations. One hundred twenty-five years later, the Army is embroiled in disputes regarding its religious discrimination.

Redirecting My Spleen

The wonderful thing about the Total News Environment is that you can come home pissed off about something, but feeling that it would be indiscreet to bitch about it, and be able to read about someone of whom it's entirely permissible to complain because he's made himself, however temporarily, a Public Figure. Today's victim is Patrick Linton, a 15-year-old ninth grader in Maryland, who refuses to attend class during National Foreign Language Week because part of his school's program is to read the Pledge of Allegiance in various ... foreign languages. "This is America, and we got soldiers at war," he said. "When you're saying the Pledge in a different language which nobody understands, that's not OK." Indeed, Linton's main problem with the translated Pledge seems to be that he cannot understand it in another language and doesn't wish to do so.

But the Pledge was recited in another language - French, as he later discovered. "I looked around, and I was like, 'What's going on?" Patrick said. Afterward, Patrick said, some of his classmates said it wasn't right. "We're at war right now, and our schools are supposed to be patriotic," he said.

Why languages other than English are inherently unfit for wartime is not quite clear; after all, some U.S. soldiers speak them. Presumably Linton would not consider Min Soo Choi and Jeungjin Na Kim (Korean), Diego Rincon (Colombian) or Joseph Menusa (Filipino) -- all killed in Iraq and granted posthumous citizenship -- to be unpatriotic. And what would young Linton make of this? The event was advertised with "If you don't understand Spanish, don't worry-- he will give a full explanation of his views in English, and then answer questions in Spanish and English. If you know a little Spanish, you must come as a commitment to multi-lingual aspirations of the Columbia Law School."

Life, Death and Alternatives

In a story listed under a procedural update regarding Sun Hudson, the Houston Chronicle reports on another legal fight over removing life support, this time for a 68-year-old retired electrical engineer. The same attorney, Mario Caballero, represents both families.

Caballero said he is confident the family can find a facility to take Nikolouzos and that a refiled request for an extension can be granted before life support is removed Friday at 3 p.m. Asked if that was procedurally possible, [Judge] Lindsay said, "I don't know."

A system in which death can be deferred by transferring a patient to another hospital strikes me as likely to be abused, or at least tipped, by money and other forms of influence. Had Nikolouzos been a major donor to another area hospital, I suspect that the grateful institution would extend its hospitality to him, even if they had no more belief in the usefulness of further care than St. Luke's. Hospital ethics committees should strive for a more unified standard of determining which patients are dis-served by extending their lives.

March 09, 2005

Reexamine Exams

Thought I'd note the flurry of discussion about the merits of traditional law school exams with respect to the actual practice of law. It began with an article by Prof. Lubet. Prof. Kerr offered his own thoughts over at VC, and David Kopel added a few words in defense of law school exams. See here, for a comprehensive list of the blogs discussing the matter in some form.

I can't add terribly too much to this aside from, Yeah, so what's the big deal? Was there any illusion that law school actually teaches us how to be a lawyer? Hell, you don't learn the law you're actually going to practice until that BarBri course after graduation. If someone actually Shepardized the casebooks, I bet there'd be a more than acceptable number of yellows and reds. Model Penal Code? It's a model for a reason. The pass/no pass, research/writing/oral advocacy class is the closest thing to actual practice, and even that is about as realistic as Disneyland. Talks by practitioners are worthwhile and give you a glimpse of life past law school, but I suspect most people, like myself, are paying more attention to the dressing used on the salad than the substance of the discussion. Three-hour in-class exam not a realistic reflection of actual practice? Neither is free, unlimited Lexis and Westlaw.

March 08, 2005

Quick! Ian Ayres

I promise to link and edit this properly later, but I wanted to post the first draft and let people react if they liked. Report from Ian Ayres's (of "RecklessSex" infamy, though for some reason that article was not listed among his current and upcoming publications) talk on "Mark(et)ing non-discrimination: or 'How to create statutory precedent before ENDA passes." Today's lecture is drawn from Ayres's forthcoming book Straightforward: How to Mobilize Heterosexual Support for Gay Rights.

The polls are much worse for nondiscrimination in marriage than in employment. But not much is happening in the employment discrimination arena; the Human Rights Campaign is considering dropping the current proposed federal legislation, Employment Non-Discrimination Act, and incorporating it into an omnibus equality bill.

Professor Ayres proposes a "Fair Employment mark," like a Good Housekeeping seal or orthodox union kosher seal. You cannot produce products with your own mark; rather, you certify that licensees are abiding by certain standards. The standards are a word by word citation to the legal duties of ENDA, and the seal costs nothing to obtain.

Currently ENDA is only a prohibition of disparate treatment; it does not have provisions for affirmative action, domestic partnership or disparate impact. It also has no coverage for gender identity or expression, which may create a split with HRC, which is moving toward including gender identity in its protected categories.

The Good Housekeeping and kosher seals are expensive for the people who give them. A licensor traditionally has to charge money for giving the seal, because of the costs of inspection and substantive certification. This Fair Employment mark is set up only to certify that licensee has signed the license; the licensee has promised not to discriminate.

It creates a third party beneficiary status; every employee during the period of the license is made an express 3rd party beneficiary to enforce the underlying promise, with the same class of private individual causes of action that would be created by ENDA. Also any government agency that could bring a suit under ENDA is empowered by this mark to bring a suit of action, giving the same remedies as ENDA.

Prof. Ayres is quite happy about the altruistic 3rd party beneficiary element of his proposal. He notes that the only for-profit industry that doesnít have to compensate people it negligently injures is the news media, per New York Times v. Sullivan; the minimum standard to win damages for libel is recklessness, and mere negligence is insufficient. We donít use 3rd party beneficiary law enough.

If we could get some employers to sign this, this is a way to start creating precedent for ENDA before the actual bill passes. With 100,000 employees covered, there would be civil contract law opinions interpreting what it means. If ENDA passes with the same words, it may influence what it means. If ENDA is amended, the license also can be amended to remain in accordance. Will ENDA produce a flood of litigation? We can start getting an idea, though obviously with the selection problem that firms voluntarily agreeing are less likely to discriminate than firms forced to comply by law.

It's a new type of federalism: a kind of corporate federalism. Not let a state opt for a different law, but let corporations opt for different laws. Before the passage of a mandatory rule federally, let firms voluntarily opt for it.

Why would an employer sign up for this?

There's a subpart of employers for whom signing up for this would create small cost because they're already required not to discriminate, so they can publicly signal their commitment and get credit for it. These would be employers in the 15 states that already have private rights of action against orientation discrimination, or that are already covered by collective bargaining, or have handbooks that require non discrimination. If you look at litigation rates in states that have the non discrimination statutes, disparate treatment suits are not a very expensive issue.

Municipal or regulated purchasers could demand it. A variety of localities will contract only with non discriminating suppliers, but currently satisfy the requirement only by non-binding agreements not to discriminate. Input suppliers might also demand it; the AFL-CIO has gotten non-discrimination claims in (though they prefer grievance procedure to private rights of action). The Association of American Law Schools requires schools have non-discrimination on basis of sexual orientation, but is not clearly enforceable. [And also doesn't apply to all law schools.]

Some people might sign because it will make them money, not just through regulated purchasers but also by individual consumers. Acoustic separation: Symbol made "FE" to be innocuous, so signifies to people who care about it without offending those who may dislike it, thus creating a boycott. Licensee has the right but not obligation to use the mark, so firms may use it only in gay publications or urban areas.

Take 10 identical firms with homogeneous product, each with 10% of market; assume 5% of customers are gay-friendly, 20% are gay-phobic, 75% donít care. If one of the 10 firms adopts the mark, it gets the 10% of the 75% who donít care (7.5% of total market), 0% of the customers who hate gay people (assuming no acoustic separation) but all 5% of gay friendly dollars. That plus the 7.5%h equals 12.5% of the market, which is greater than 10% and provides an incentive to adopt the mark. At equilibrium, two of ten firms will have the mark.

What if as a preliminary to mandatory regulation, Congress always did an opt-in rule? The Equal Employment Opportunity Commission currently has no statutory authority to enforce nondiscrimination against gays, but how about Congressional legislation letting the EEOC enforce this against employers who volunteered?

HRC has a Corporate Equality index on a scale up to 100, and if you get a 100% rating you get a 100% mark to put on your product. It doesnít subject employers to any litigation risk. The HRC mark goes further than the "FE" Ė it gives extra points for giving money to civil rights organizations or setting up an LGBT group, which can be spun as special rights or shakedown (Rainbow Coalition concern) and doesnít just capture core non-discrimination.

[I didn't fully capture the question-and-answer period, so apologies for making either the questioners or Prof. Ayres sound insane.]

Q: Courts will bear the certification cost, as in private contract. Is it right to force this on the courts without passage by legislation (and attendant modifications of court system to allow it to bear the burden)? Private cause of action: what would it look like?

A: You can get a class certified. Brought in state court like most contract violation.

Q: Creation of statutory precedent. How is this useful? Different states will decide things differently under their own contract rules, and federal courts wonít be bound by any of them. Laboratory effect may be useful, but only in dynamic way; to get Congress to react to it.

A: Hostility against activist judges; even though the statute expressly says you can only bring disparate treatment suit, legislatures may say they donít trust that. SCOTUS nullified Title VIIís provision of only disparate treatment and put disparate impact into it. Finding out how it plays out in the world. You should get a tingle out of being able to create precedent before statute passes.

Q: Would you expect court to look to Title VII law or state & local ordinances? Under this proposal, a Columbia University employee is covered against discrimination on the basis of sexual orientation by New York City, New York State and this mark; would you expect a court to treat the mark-based protection differently? Also, contractor ordinances generally are passed only in cities that already have non-discrimination ordinances.

A: Courts would be drawn to put themselves into imagining what the regime would be if ENDA passed. They would look to federal precedent on non-discrimination law. With regard to contractor ordinances, some localities will prohibit discrimination in city employment, and for firms with which the city does business, but not for all firms within the city.

Q: In the 10 homogenous firms example, benefit goes primarily to first mover.

A: That's an empirical issue.

Q: Why not a sanction regime, where the punishment is not through litigation but the loss of use of mark?

A: Deference to "victim organizations" [Ayres's words, not PG's] that currently use such a regime. Ayres wants to get ENDA to pass. ENDA doesnít currently have punitive damages. Part of this is marketing: get the 150 Fortune 500 companies claiming to support ENDA to use the mark, which doesn't require more than the legislation; if anything, this is ENDA minus.

Q: A company marketing itself as a gay friendly employer should have its pick of gay employees. Do you want to attract a disproportionately litigious group of gay applicants?

A: Some of the people attracted will be hetero allies. Employers can put a disclaimer against litigation in its handbook, claiming that itís not a contractual promise. But Ayres wants to create possibility of a contractual promise.

[The question I didn't get to ask because all the interrogators were professors: people who really care already have this information about which firms are gay-friendly; people who care only a little bit are unlikely to modify their consumer behavior (consider the failure of Made in the USA and no-sweatshop marks). So what will this mark really add that employers are likely to consider a benefit?]

March 07, 2005

Those Other Religions...

My favorite brown blog, Sepia Mutiny, has a good post about the Supreme Court's Hindu friends. Unfortunately, there is no naan in the SCOTUS cafeteria, but the Hindu American Foundation, along with nine co-signatories representing Hindu, Buddhist and Jain organizations, filed the only amicus curiae brief providing a non-Judeo-Christian perspective in Ten Commandments case argued before the Court last Wednesday.

I think people too often assume that the only folks with a dog in the church-state separation fight are Christians and atheists, with the Christians trying to maintain their religious practices and beliefs as the norm, while atheists try to remove everything they perceive to be a lie from the public square. However, many of us are neither Christian nor atheist, and these Other religions have their own stance in these matters. "During the arguments, Professor Erwin Chemerinsky, Attorney for Van Orden, specifically asked the Justices to consider the effect of the Texas display on Hindus and Buddhists."

Inspired by this post, I'd like to work out which of the Ten Commandments are Hindu-compatible, in hopes that Justice Souter might find it useful.

Justice David H. Souter asked whether a tablet containing only the last five commandments, the injunctions against killing, stealing and so on, might be constitutional because, unlike the first five, they did not necessarily imply religious belief.
That would be a harder case, Mr. Chemerinsky replied, but such a tablet would still be unconstitutional because it would still convey the Ten Commandments' message.

This is a little tricky, as Balkinization commenter David noted, becaused of the disparity between the Scalia and Ginburg versions; i.e., should I go by the Catholics or the Jews? The difference isn't just in the numbering, either.

A central concern for Hindus would be the prohibition on graven images -- hard to perform all the milkwashing and garlanding parts of a puja without the figure of a god or goddess. It's boo-boo number two in the Protestant and Hebrew decalogues, but nowhere to be found in the Catholic list. This was an issue in the Reformation, as Martin Luther & Co. found praying before the images of Jesus, and especially of the Virgin Mary and saints, to be a little too close to pagan practices. The numbers work out because the Jews and Protestants collapse the coveting bans into a single commandment, whereas the Catholics politely distinguish one's wife from one's ox and ass. (Ditto the Hebrew reminder "I am the Lord thy God, who brought thee out of the land of Egypt, out of the house of slavery," which fits because the Jews put "no other gods" and "no graven images" into the same commandment.)

The degree to which these monuments to the Ten Commandments, particularly if one takes the Alabama Chief Justice Roy Moore "remove them over my dead body" attitude, might be considered worshipped graven images, I leave to someone with more theological sophistication than I.

I'm not sure why Justice Souter thought that only the last five commandments didn't imply religious belief, as "Honor thy mother and father" seems like a good secular precept for a nation of poorly-run nursing homes and elderly people subsisting on Social Security checks to take seriously. Certainly both Hindus and followers of Confucius -- one of the historical law-givers depicted in the Supreme Court's east entrance sculpture group, along with Moses and Solon -- favor this principle. All except the first three commandments in the Catholic decalogue seem fit for non-Christians, and all except the first four in the Protestant and Hebrew editions.

If we were looking for historical significance, I'd add the Sabbath commandment as well, to explain the American tradition of complaining when one has to come into the office on the weekend. Possibly the prohibition on taking the Lord's name in vain might be a quaint historical reminder of the days when profanity rather than obscenity obsessed the FCC's predecessors.

The prohibition on having no gods other than the one who brought the Jews out of Egyptian slavery, however, strikes me as actually contrary to the First Amendment, in a way that no other commandment conflicts with our declared constitutional principles. Maybe it's just my polytheistic upbringing talking, but for the state to declare in any way that it recognizes only one god seems to Establish Religion -- and not just "religion" in the general sense, but a religion worshipping a god, which all but the nuttiest supporters of religion in the public square concede to be unconstitutional -- quite effectively.

Bankruptcy Blog

If you're interested in the controversial bankruptcy legislation currently before Congress, check out the limited-duration bankruptcy blog at talkingpointsmemo.com. The legislation, repeatedly put forward at the behest of banks and credit card companies, would require that people who make more than the median income in their state file for Chapter 13 bankruptcy protection, under which debtors are required to repay at least some of their debt, instead of Chapter 7 bankruptcy, under which a person's debt is erased.

Titled "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005," the bill may fulfill the first part of its name but seems decidedly short on the second; amendments exempting victims of identity theft and all military personnel from the "means test" and discouraging predatory lending practices have failed to pass. Supporters claim that the Consumer Protection part comes in when banks and credit card companies no longer pass on the cost of unpaid debt to non-bankrupt customers. Unlike the tort reform measure recently enacted that limited many class-actions suits to federal courts, however, the bankruptcy bill doesn't appear to be due to popular demand. I've heard many regular people complain about litigation that they consider inappropriate and unjustified, but I've never heard a person not employed in the financial industry bitch about the ease of personal bankruptcy. Corporate bankruptcy, yes; personal bankruptcy, no.

Doing it next summer probably wouldn't work either, however, as that's traditionally when one works somewhere that would also be a potential post-graduation employer. The already dim possibility of becoming a JAG attorney vanished completely with page 18 of the recruiting guide, which says that "You will also participate in physical fitness training and an overnight field training exercise." Oh hell no. Out in the woods, I'll be an army of one looking for the nearest Barnes & Noble.

Later in the day, when people asked why I was dressed up, I replied, "JAG interview." Responses varied: nods, "cool"s, raised eyebrows. One person pointed out that I could have interviewed off-campus without being obnoxious about it, by calling the week after On-Campus Interviewing and asking to visit their offices for the interview.

Another person, involved in the issue of the military's "don't ask, don't tell" policy and their presence on campus, questioned me more thoroughly. He seemed displeased that Career Services appeared to be facilitating JAG's interviews more than those of other employers. A staff member greeted me when I came in and told me the interviewer was "very nice," although I figured this was just to balance the sign next to the interviewer's door that re-stated the disclaimer from the OCI website, which gives a rather ogre-ish impression.

His annoyance made me a little uncomfortable, since I'm not accustomed to being on the side of the oppressor. As I've mentioned before, I disapprove of "don't ask, don't tell," and think that colleges should be able to exclude employers from on-campus interviewing if they find the employers to be violating policies the university attempts to promote.

At the same time, even soldiers serving in a discriminatory military need legal services, especially when they're bearing the whole responsibility for the practice of torture, or being targeted by predatory lenders. Military lawyers also represent Guantanamo Bay prisoners who are challenging their detention. Or maybe even when servicemembers are fighting criminal charges and a court martial for "conduct unbecoming" -- i.e. when the military is trying to push out a gay or lesbian servicemember -- though I wouldn't want to romanticize the extent to which JAGs work for individual soldiers as opposed to the military as an institution.

I'm not sure there's really a point to this post, beyond expressing my ambiguous feelings about how to deal with being both pro-equality and pro-soldier. As I'm not seriously considering the Judge Advocate General's Corps as a future career, it's not even a big problem for me, but I wonder how other people may be dealing with similar issues.

A Foggy Bottom friend who opposes the war in Iraq simply compartmentalizes her own political views away from what she does in her State Department job. Some anti-war folks would consider this impossible, or a cop-out, but I don't see why all the people who don't march in lockstep with the current administration should have to leave their jobs -- or why all the people who oppose "don't ask, don't tell" should have to be on the outside of the institutions that make the policy. (And spare me the argument that Congress decides this. If the military said "We'd love to have homosexuals!" even a GOP Congress is unlikely to continue an absurd practice that's created a lot of trouble.)

March 03, 2005

Cruisin' in the Firm

Law.com had an article yesterday that I'm sure has been commented on ad nauseam by now, but I figure why stop. In short, the article describes the sentiments of partners at firms regarding Gen Y (born after 1978) associates' lack of enthusiasm towards working their asses off for a chance to make partner. As a child of the '80s, I'd like to discard my horrible sense of style and opine on this.

The first thought that crossed my mind while I read the article was that a firm complaining that younger associates aren't working hard enough is a bit akin to Kathy Lee Gifford complaining that her factories aren't producing as much as they used to. Granted, the observation is probably valid; I'm just not sure there's any moral high ground from which to make the announcement.

I especially love the dissatisfaction expressed by the chairman of MoFo, the same firm that just recently let go a senior associate because they can no longer afford her rate (as such they will hire new, cheaper, junior associates to replace her). I know the person, so it particularly strikes me awkward that I may be hired to replace her and face a similar fate a few years down the road. How's that for dedication? Bottom line, if the firms are concerned with their bottom line, why can't junior associates be the same? Is the loyalty obligation a one way street? Even partners are now starting to see the light.

The second thing running through my head as I read the article was, "well duh." With admissions committees increasingly looking for well-rounded applicants, it comes as no surprise that people my age have a variety of interests. How can someone who worked in a political office not keep abreast of politics? How can the journalist not be tempted to write again?

Does this mean that somehow my generation has a less dedicated work ethic? No, quite the contrary. I think my generation is as dedicated to its employers as any other. We just don't think we should make an exception for firms by dedicating our souls to boot. Is there cynicism involved as the article suggests? Yes, but not because of the dot-com bust or 9/11. The cynicisim is the same found in every generation from ancient times. It's a general cynicism directed at anything that is done for no other reason than "that's how we've always done it." Within the legal profession, our non-conformity even extends to legal education.

I'm unashamedly admitting to every trait that partners now see in junior associates. I will slit my wrists the day a top 500 firm unashamedly admits to exploiting the talents of junior associates. I'm not such an idiot to consider $125,000 a year starting salary to be exploitation in any stretch of the word. And I also understand the argument from a firm's perspective where they are anow getting less for what they pay. My point, as stated above, is that if firms are in fact using junior associates for their gain, why is it so wrong for us to use firms for OUR gain? Again, this is just a reflection of historic changes made BY firms when they began to adopt corporate models for their operations. My generation is returning the favor.

March 02, 2005

Today / March 3

Today in Bad Calls History (1873) - The U.S. Congress enacts the Comstock Law, making it illegal to send any "obscene, lewd, or lascivious" books through the mail. One hundred twelve years later, Women Against Pornography gives Huggies Diapers its "Pig Award," for its "Miss America diaper ad presenting little girls in objectifying cheesecake poses, which ignore the prevalence and seriousness of child molestation."

It's Alive

Now, I won't promise that my blogging uber-hiatus is officially over, but I can't deny that the recent domain name emergency here at De Novo (it was entirely my fault, let it be known) reminded me that I'm still at least somewhat attached to this blog. Some time in the next few days I'll post a satire I wrote for the UCLA Law School newspaper, a paper that is evidently defunct now, RIP.

Just to flex my shameless audacity, I'll go straight from months of silence to blegging. Does anyone know of a free internet site that organizes modern / pop music by genre and sub-genre, and that explains the major features of these genres and the groups that compose within them? I'm aware of the amazing Ishkur's Guide to Electronic Music but I need something broader and a bit more thorough in descriptions. Thanks for any pointers.

Do You Want a Date or a Kindergarten?

Of the million differences between the University of Virginia and Columbia, between Charlottesville and New York, one not immediately obvious is the faculty each school and city can attract.

I've been told that UVa has a hard time getting single professors to teach there, because while Charlottesville has many virtues, a hot singles scene -- for people who aren't dating undergrads or grad students -- is not one of them. On the other hand, professors with young families love being in a small town with decent schools, where property values are still low enough that a nice house and backyard is affordable even on an academic salary.

Columbia is the reverse: tons of educated single New Yorkers, but expensive and crowded in housing and schooling. The most desirable children's education options in Manhattan are private schools that demand money and connections, and public schools that apparently require some combination of high-testing child and phenomenal luck. At a firm lunch, I marvelled at the competition to get children into particular schools, and the attorney next to me said, "Don't joke, it's that season." She was going through the process. It's very different to be an upper class New York parent than to be a 20something law student who figures that if one can go through Texas public schools and still end up at the same graduate schools as the private school kids, it can't really be a big deal.

Columbia attempted to solve the problem by building a school for the children of faculty to attend, but that hasn't been a cure-all either, as demand for seats (as we would say in India, where competition for schools makes people literally suicidal) outstrips supply. While I applaud the School at Columbia's commitment to enrolling neighborhood kids in equal numbers with faculty offspring, social justice doesn't mesh well with the practical purpose of making professors happy -- though I bet few will openly say that they want the school to become Columbia-spawn-only.

March 01, 2005

While You Were Out

In case you missed it, De Novo had a bit of a hosting issue the last few days. As a result, I would like to open the bidding for the best new name for the blog (no not really changing names so hold off on the serious suggestions). So in light of the down time, I'll start the bidding with "De No mo'" or "De No host" or "De No Worse"

Law School Prom

Is the standard description of Barrister's Ball to non-law folks, and the one I gave my mother when she demanded to know why I wasn't coming to Providence to get my little sister drunk this weekend.

There doesn't seem to be much discussion of the Ball on law school blogs. Google turned up one guy delighted with his date, another protesting a Dixie Chicks ban, with more here; pictures (judging by attire, a black tie highly optional ball); pictures from a couple attending different schools; a coupleposts from lawren as well as a clip of her drunken debauchery, the menagerie looking forward to the establishment of Barrister's Ball. Doug's Ball was last Friday, but he hasn't reported back on how it went. Emory law student Adam's post on last year's Ball got much more gossipy in the comments; blogbelle's on this year's was very gossipy in the post. Helen Yu and Lily covered the all important Getting Ready report, while Kasmira provided the law student's wife perspective and this German blog the LLM's. Mambels found the UVA Ball to be an improvement on high school prom, at least: "lack of my date fooling around with another dude in the bathtub while I slept in a closet." An even more disturbing reminiscence was offered by Perpetual Child: "You're Never Too Old to Have Sex in the Backseat of Your Mom's Minivan." Mey put up last year's menu for the SMU Ball but didn't say whether she attended. Paul Gutmann might have given me a clue as to what I should expect, but he closed off the pictures from Columbia's 2004 event.

By the way, I love the search page on the redesigned Begging to Differ:

No pages were found containing "barristers." If you think "barristers" is something we ought to be writing about, please email us and let us know.

And I could have sworn that the first time I heard of a Barristers Ball was at Unlearned Hand, but nothing turns up in his archives, though he is ensuring himself a date this year.

Not to Be Rude, Ungrateful and Diverse

But this e-mail is a bit ludicrous:

[Firm] will be hosting a reception for all diverse 1Ls on [date], at [time] at our offices ([location]). It would be greatly appreciated if you could please forward this invitation to any mailing list of diverse 1Ls that your office maintains and help us advertise on campus.

Diverse 1Ls? Can't we just use a straightforward term like "women and minorities," if that's what is meant? DuPont has no problems with that; it's the "DuPont Minority Job Fair."

This is not an argument against affirmative action; I think law firms should be trying to make their attorney pools more reflective of America. This is a language use gripe. I don't like narrowing the meaning of diverse so that it only applies to protected categories like race, gender and orientation. The dictionary gives it a broader scope: "Differing one from another; made up of distinct characteristics, qualities, or elements." So we have a diverse class, a diverse school, but surely as individuals we are not diverse unless we have multiple personality disorder.

If I apply for law review, I absolutely refuse to write my diversity statement on something that entails being on a mailing list. It'll have to be about being the only small-town-raised blogging Texan. After all, there's less competition in that category than the others. Too many damn women and South Asians in my class.

Roper Dissents

They're about what you'd expect. O'Connor politely argues on the majority's own turf, disputing whether there is a genuine and consistent trend among the states to disfavor capital punishment for crimes committed before 18, and seeing an insufficient shift since the Court affirmed the constitutionality of the juvenile death penalty in 1989's Stanford v. Kentucky. "I disagree with Justice Scalia's contention, post, at 15Ė22 (dissenting opinion), that foreign and international law have no place in our Eighth Amendment jurisprudence."

Scalia, joined by Rehnquist and Thomas, smacks the majority:

Hamilton had in mind a traditional judiciary, ďbound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.Ē Id., at 471. Bound down, indeed. What a mockery todayís opinion makes of Hamiltonís expectation, announcing the Courtís conclusion that the meaning of our Constitution has changed over the past 15 yearsónot, mind you, that this Courtís decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to ďthe evolving standards of decency,Ē ante, at 6 (internal quotation marks omitted), of our national society. [...]
Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

Let it be noted, however, that Scalia grudgingly admits "our modern (though in my view mistaken) jurisprudence" takes into consideration what the national consensus is; like O'Connor, he then rips the majority for seeing such a consensus.

My personal favorite part of Scalia's dissent, however, has to be near the end when he points out that the Court doesn't look to other nations in its jurisprudence regarding the right to trial by jury, the exclusionary rule, the right to abortion or the separation of church and state. Then it's time to whack O'Connor for using foreign courts as a metric of reasonableness.

Today/ March 1

Today the Supreme Court ruled the juvenile death penalty to be unconstitutional by the evolving standards of decency with regard to cruel and unusual punishment. Fifth vote and majority opinion? Kennedy.